Search for justice: The dilemma of mentally ill inmates

Records about his trial later that year are scanty but for such an atrocious crime, his file was swiftly processed and in an instant, paraded before the same court and remanded to Katojo prison in Fort Portal.
During the course of trial over the next four years, he underwent medical examination, and psychiatric evidence was presented, which confirmed that he suffered severe psychotic and deluded form of depression at the time he killed his son. So, he did not know what he was doing. And, he does not recall these details as well.

The problem
The voices inside Bushoborozi’s head came along with seeing things others around him did not see, a problem that started in 1998 with constant bouts of a hard migraine headache — the kind with symptoms such as pain around the temples [sides of the head], sensitivity to light or sound, blurred vision and more often nausea, but which he shrugged off casually with an occasional visit to a drug store for pain killers.
“The headache would come and go; sometimes it would be very hard and other times light. I had been advised to take painkillers every time it came,” he narrated. “Sometimes it would go even without taking the pills, so I got used.”
But year-in and year-out, the headache continued to grow stronger, but he continued to fight it by taking pills over the years, then came advice to see a pastor, and the grisly act that left everyone, including the Church very alarmed.

According to a 2009 study published in the General Hospital Psychiatry, a bi-monthly peer-review research journal for publications on psychiatry, medicine, and primary care, migraine headaches can precede the onset of mental disorders.
“Together, migraine and mental disorders cause more impairment than alone,” noted lead study author Gregory Ratcliffe, adding that: “Patients who have one condition should be assessed for the other so they can be treated holistically. Although it is important to know that both are present, treating one will have an effect on the other.”
Dr Julius Muron, a consultant psychiatrist at the National Mental Referral Hospital, Butabika, says hearing voices or auditory hallucination, may or may not be associated with a mental health problem. “But it is usually a symptom of a mental problem.”

The case
On December 1, 2006, Justice Rugadya Atwooki ruled that Bushoborozi was not guilty because of insanity under section 48 (1) of the Trial on Indictment Act. He was however, remanded back to Katojo Prison pending the minister’s orders – the minister was to decide whether he would be taken for mental treatment or dealt with otherwise.
After being remanded in 2006 pending the minister’s orders, no further action was taken. He spent another nine years on remand but at the same time while undergoing psychiatry examination, treatment and constant examination until release last year. In fact he would still be in prison by now, like other inmates of his calibre whose files were [and are every year] submitted to the Minister of Justice — who according to the law is supposed to study them take appropriate action.
Bushoborozi’s luck came around 2014, when a distant relative, Mr Cosmas Kateeba, a lawyer previously working in Kampala handled his case.
On June 17 2014, Mr Kateeba, a former principal lecturer at the Law Development Centre (LDC), wrote to the Chief Registrar Paul Gadenya bringing to his attention the case of Bushoborizi but got not feedback.

Against this backdrop, Mr Kateeba filed an application on behalf of Bushoborozi at the Fort Portal Court seeking among others, his release, and to strip the minister of powers to release mentally ill inmates found innocent by court.
A landmark ruling was delivered on July 10 last year by the court’s Judge David Batema stripping the minister of powers.
“I am of the strong belief that the trial court retains the power to issue special orders for the confinement, discharge, treatment or otherwise deal with the prisoner that is insane or has ceased to be insane. That criminal file remains open, pending the Judge’s special orders. It is not done with until all is done with the prisoner” ruled the judge, and further ordered for his immediate release.

Paying the painful price
The judge said the Constitution demands that the Judiciary must be independent in executing its work, and that having to wait for the minister’s orders interfered with its independence.
Even the State prosecutor Adam Wasswa, during the hearing of the case, conceded that the case was a complex one as there were no express procedures or solutions to the same.
Bushoborozi went back to his family, he was lucky to find his wife still around, and relatives to embrace him again. The nine years he spent in jail, he worked as a tailor, and so he had some money to start a new life. He still undergoes examination but only periodically.
Throughout our interview that ran for two days, he seemed fine; displayed an affable character with poise that hides his erstwhile despair.

Human rights activists, authorities and legal experts alike, interviewed for this article all concluded that keeping mentally ill inmates behind bars is not only cruel but also demonstrates the ills in our criminal justice system at the time when government is striving to conjure up clean human right slate. But the problem, all officials, said is the law.
Article 48 of the T.I.A gives powers to court on ruling on the special finding if not guilty by reason of insanity. When the court makes such a ruling, section 2 indicates, it “shall report the case for the order of the Minister, and shall meanwhile order the accused to be kept in custody as a criminal lunatic in such place and in such manner as the court shall direct.”

“The Minister may order a person in respect of whom a special finding has been made to be confined in a mental hospital, prison or other suitable place of custody.”
“The Minister clearly has no role in this, and it was until this point I was handling this case that I started wondering what the framers of the legislation were thinking,” Mr Kateeba argued.
“We might have won the first round [of stripping the minister of the powers] but the law still stands; this case can only serve as precedent in future legal challenges, which in fact should be waged, to scrap specific clauses [in the act] which do not make sense.”

Bushoborozi might have been lucky but several people with his condition have not been as lucky. The list of such prisoners pending minister’s orders as of 2016, according to available information to this newspaper, has about 40 inmates. All are in prison for either murder or defilement.
These are committed in various prisons, in Luzira’s Murchison Bay, Upper prison and Women’ wing respectively, Katojo and Masaka Central prison. They were all tried, declared innocent on grounds of insanity and not fewer than 15 have served more than 15 years on remand.

Through prisons publicist Frank Baine, the Commissioner General of Prisons, Dr Johnson Byabashaija, turned down a written request by this newspaper to visit and access some of the inmates on grounds that “a sane person cannot have meaningful conversation with a mentally unstable one”.
Mr Baine explained that Uganda Prisons Services as the custodian of all prisoners, is “taking good care of them.” “Because it is all we can do.”

“It is a challenge that we are facing, but what is clear is that those who are supposed to be addressing it are not concerned,” he said.
“There is a contradiction between the Trial on Indictments Act, which entrusts power over these people to the Minister, and Articles 23 and 24 of the Constitution protect personal liberties and respect for human dignity, respectively. Being placed on remand like in the case of these people, means you are still on trial,” he added, saying Article 23 does not stipulate how long should a trial last.

Remand or pre-trial detention is the “legally permitted time to spend in custody waiting trial or awaiting conclusion of the trial. The Constitution provides that in cases triable by the High Court as well as subordinate courts a person should be granted bail on such conditions as the court considers reasonable after for 60 days, and for cases triable only by the High Court 180 days before the case is committed.
“There are so many inconsistencies in the laws, but that is the work of lawyers and the judiciary.”
But even then, he said, “the challenge is that irrespective of how many recommendations are sent the Minister [politicians] do not seem committed to helping these people. So what if they release them and they go out there and do even worse?”

During our interaction with Bushoborozi, he acknowledged presence of the inmates whom he described as “great friends”, have been undergoing medication and “are now doing fine.”
The responsibility of proving one’s mental stability lies with the regional hospital psychiatry experts, who occasionally visits and examines these inmates. For a population of 34 million people Uganda has only 34 qualified psychiatrists. But each of the 13 regional referral hospitals have at least one psychiatry consultant.
When this paper contacted him recently, Justice minister Kahinda Otafiire said he was not aware there is any prisoner waiting for any of his orders to be released, and said if there is any, then probably, because the matter has never been brought to his attention. “I will crosscheck if there is any file.”

The prisoners’ files
A senior official in the ministry who declined to be named, however said the files have been gathering dust since 1994 and each of the four previous ministers who have served in the docket were duly informed of the matter.
The Chief Registrar of Courts of Judicature, Mr Gadenya, admitted and described the problem “as one of the shortcomings in our justice system, but the good thing is that we are aware and there are conversations going on about this.”
However, the main problem, he said, is the lack of follow-up on the part of lawyers.

“Lawyers defend these people and completely forget about them. The other challenge for us is how do we ensure the minister fulfills his mandate of making the orders? Well, that is really beyond us.”
Last year, Justice Batema, seemingly irked by the extent of the problem, directed the registrar of the Fort Portal Court to resurrect all files of inmates pending the Minister’s orders for discharge. A number of juveniles were released but mentally ill inmates were not because some of their files were missing.

The records
The World Health Organisation says one in four people in the world will be affected by a mental disorder at some point in their lives.
The recent Population and Housing Census report released by the Uganda Bureau of Statistics did not report about the incidence of mental illness in the country. But the ministry of Health said before the census, the number of mental cases reported to health facilities had increased by 17, ¬000 between 2009 and 2012.

Some of the inmates awaiting Minister’s orders
Sande Kamuhanda: file pending since 1991. He died in June 2016
Zaina Nyakato: since 2004
Hannington Otule: since 2005
Josepgh Ssekajja: since 2003
Abdul Balyebula: since 2006
Monday Abudallah since January 2006
Kule Ruhaleru: since 2009
Besige Mukama: since 2009
Jimmy Ndarubwine: since 2011
Emmanuel Kambasu: since 2012
Nasson Bwambale: since 2011
Yowana Byamukama since 2007
Bosco Ojera: since 2007
Ibrahim Muwonge: since 2011
Julius Omony: since 2007
Steven Musisi: since 2004
Sande Alupakusadi: since 2007
Kagimu: Kinalwa: since 2009
Robert Byaruhanda: since 2010

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Continues tomorrow